Gordon, In re, No. 76-1654
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | WRIGHT |
| Citation | 534 F.2d 197 |
| Parties | In re Irwin GORDON, a witness before the Federal Grand Jury. UNITED STATES of America, Plaintiff-Appellee, v. Irwin GORDON, Defendant-Appellant. |
| Docket Number | No. 76-1654 |
| Decision Date | 13 April 1976 |
Page 197
UNITED STATES of America, Plaintiff-Appellee,
v.
Irwin GORDON, Defendant-Appellant.
Ninth Circuit.
Page 198
Gary Logan, Las Vegas, Nev., for defendant-appellant.
Lawrence J. Semenza, U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Before: CHAMBERS, WRIGHT and TRASK, Circuit Judges.
WRIGHT, Circuit Judge:
Gordon appeals from an order of the district court holding him in contempt for refusing to comply with an order that he answer questions propounded before a grand jury after he had been granted immunity. He has been committed to the custody of the Attorney General until he purges himself of the contempt or until the life of the grand jury expires. Appellant is presently free on bail.
The government moved to dismiss this appeal for failure to pay the docket fee pursuant to Rule 12(c) of the Federal Rules of Appellate Procedure. Although late, payment has now been made. No delay in the appeal process having resulted, the motion is denied.
The law does not require that the district court make the type of protective order appellant unsuccessfully sought below although the court, in its discretion, might have granted it. United States v. Canon, 534 F.2d 139 (9th Cir. Apr. 8, 1976). Cf. Goldberg v. United States, 472 F.2d 513, 516 n.5 (2d Cir. 1973).
Nor may appellant, as a recalcitrant witness, delay the grand jury proceedings while he litigates the question of the validity of the electronic surveillance. Droback v. United States, 509 F.2d 625 (9th Cir. 1975); In re Persico, 491 F.2d 1156 (2d Cir. 1974).
The attempt to avoid the holding of Droback by alleging that the electronic surveillance in this case was patently illegal also fails. The Second Circuit, in Persico, supra at 1162, outlined the limited circumstances
Page 199
under which such a challenge may be appropriate:(T)he refusal would be permissible only if there is an absence of a necessary court order or if there is a concession from the Government that the surveillance was not in conformity with statutory requirements or if there is a prior judicial adjudication that the surveillance was unlawful.
Appellant's challenge to the court order on the basis that there were other investigative techniques available at the time the court ordered electronic surveillance, see United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975), does not fit within any of these categories. A determination of the validity of this contention would require a plenary hearing. This is the type of delay sought to be avoided in Droback.
For the same reason, the assertion that 18 U.S.C. § 2518(9) 1 required release to appellant of the court's order authorizing electronic surveillance...
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State v. Gilmore, No. 94-0123-CR
...electronic surveillance were unlawfully disclosed, § 2515 does not require suppression); Resha, 767 F.2d at 287-89 (same); In re Gordon, 534 F.2d 197, 199-200 (9th Cir.1976) (same). We therefore reject the defendant's argument that language in 28 U.S.C. § 2515 is applicable to this Page 410......
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DeMonte, In re, No. 81-2804
...only when the judge recognizes the illegality of the surveillance independently of a challenge by the witness. See also In re Gordon, 534 F.2d 197 (9th Cir. 1976); In re Grand Jury Proceedings (Worobyzt), 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 76......
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U.S. v. Morales, No. 314
...Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 450 (1975); In re Gordon, 534 F.2d 197 (9th Cir. 1976). The First and Eighth Circuits have required production of court orders authorizing electronic surveillance in these circumsta......
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Harkins, In re, No. 80-1614
...States v. Worobyzt, 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976); and In re Gordon, 534 F.2d 197 (9th Cir. We, however, are persuaded by the reasoning of three other circuit courts which have rejected or modified the Persico doctrine. Most r......
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State v. Gilmore, No. 94-0123-CR
...electronic surveillance were unlawfully disclosed, § 2515 does not require suppression); Resha, 767 F.2d at 287-89 (same); In re Gordon, 534 F.2d 197, 199-200 (9th Cir.1976) (same). We therefore reject the defendant's argument that language in 28 U.S.C. § 2515 is applicable to this Page 410......
-
DeMonte, In re, No. 81-2804
...only when the judge recognizes the illegality of the surveillance independently of a challenge by the witness. See also In re Gordon, 534 F.2d 197 (9th Cir. 1976); In re Grand Jury Proceedings (Worobyzt), 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 76......
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U.S. v. Morales, No. 314
...Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 450 (1975); In re Gordon, 534 F.2d 197 (9th Cir. 1976). The First and Eighth Circuits have required production of court orders authorizing electronic surveillance in these circumsta......
-
Harkins, In re, No. 80-1614
...States v. Worobyzt, 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976); and In re Gordon, 534 F.2d 197 (9th Cir. We, however, are persuaded by the reasoning of three other circuit courts which have rejected or modified the Persico doctrine. Most r......